Liptrot v. Holmes , 1 Ga. 381 ( 1846 )

By the Court

Warner, Judge.

This was an action of trover, brought by the plaintiff in error, to recover the possession of fourteen slaves. It appeared in evidence at the trial, the negroes in controversy were the property of the plaintiff’s intestate, before her intermarriage with Henry Taitón. That, prior to the marriage with him, she entered into a marriage contract, by which the aforesaid property was secured to her sole and separate use. It also appears, from the record, Henry Taitón survived his wife Camilla, the plaintiff’s intestate, married again, and then died. The plaintiff’s intestate left two children, one by her former husband and one by Henry Taitón. The plaintiff then proved the conversion of the negroes by the defendant, their value, &c.; then read his letters of administration to the jury, the marriage contract, proved the marriage of the parties thereto, and closed his case. The defendant then moved the court for a nonsuit, op the ground the plaintiff’s evidence showed the legal title to the property was in John IAptrot, as trustee, under the marriage contract, and not in said John Liptrot as the administrator of Camilla Taitón. Which motion the court sustained, on the ground that the plaintiff’s intestate, at the time of her death, bad only an equitable interest in the property, and that such interests are cognizable alone in a court of equity. To this decision of the court below, the plaintiff excepted, and now assigns the same for error in this court. The plaintiff has made general specifications in his assignments of error, but they all amount to the same thing in substance, and will be all considered together. To enable the plaintiff to maintain trover for the property in dispute, he must have had either a general or special property therein, the actual possession, or the right of possession. — Holcombe vs. Townsend, 1 Hill's So. Ca. Rep. 399.

The whole interest of the intestate’s personal estate vested in the plaintiff as her administrator, on the grant of letters of administration; and such grant has relation to the time of the intestate's decease.— Toller's Executors, 133. Was there such an interest then vested in the plaintiff, as the administrator of Camilla Taitón, as would entitle him to maintain an action of trover against the defendant, who is a mere stranger, so far as the evidence shows ? It is true, the defendant’s plea exhibits him in a different capacity, but that is no part of the testimony. It is conceded that the plaintiff’s intestate held this propertyin her own right. Anterior to her marriage with Henry Taitón, the title to it was vested in her. Wliat lias she done, prior to her death, to pass that title out of her ? The defendant in error insists, she conveyed the title to John Liptrot, as trustee, by the marriage contract, and so the court be-» low seems to have thought; but we have bestowed the most careful attention upon that marriage contract, and have not been able to finó any words therein, which can be construed so as to pass the title out or her, and vest the same in him as trustee. After reciting the desire Of the said Camilla, to secure the property for her sole and separate use, free from the control of said intended husband, it is further stipulated in said contract, that “ the said Henry Taitón and Camilla Liptrot do, by these presents, constitute and appoint John Liptrot trustee for said Camilla, and for all and singular her property, real and personal, herein-before referred to, and the increase, to keep, preserve, and assure the same forever unto the said Camilla, and to her entire and free use, control and benefit, free and exempt from all and every liability, obligation or charge, of any and all judgments, debts, demands or contracts now existing, &e.: And the said John Liptrot hereby accepts the trust aforesaid, and covenants and agrees to and with the said Camilla, that he will well and trulyr take charge of, have, hold, and keep, and defend, in her possession, and for her separate and distinct use as aforesaid, all and singular the said property, personal and real, and for the exclusive use and benefit of the said Camilla; and that the said John Liptrot will well and truly, and in all things, do and perform all and singular the duties of trustee as aforesaid.” The instrument, it will be perceived, appoints him trustee ; hut there are no words of conveyance used, to pass the title of the property from her to him, as such trustee. How far a court of equity would have carried out the intention of the partios, and enabled him to protect the property against the marital rights of the husband, it is not now necessary to decide. Conceding, however, there are words in the instrument, conveying to John Liptrot the legal title to the property, for the purposes specified in the contract, yet, at her death, the objects and purposes of the trust were fully executed. What wore the objects and purposes of the trust ? Why, to protect her in the free smd separate control and enjoyment of the property, during her coverture with Henry Taitón ; and the moment the coverture was dissolved, by the death of either party, the objects of the trust, as well as the intention of the parties, was fully answered. Whatever opinions may have prevailed at one time, in regard to the right of a feme covert, to alienate and dispose of her separate property, it is now well settled, she has that right, without the intervention of trustees; for such power is incident to such ownership, — 2 Kent’s Com. 171; Clancy’s Husband and Wife, 354-5; Fettiplace vs. Gorges, 1 Ves. Jr. 46; Essex vs. Atkins, 14 Ves. 542, 547; Jacques vs. Methodist Episcopal Church, 17 Johns. R. 577. In Fettiplace vs. Gorges, Lord Thurlow says: u I have always thought it settled, that from the moment in which a woman takes personal property to her sole and seperate use, from the same moment she has the sole and separate right to dispose of it. Upon, the cases, I have always taken this ground : that personal property, the moment it can bo enjoyed, must be enjoyed with all its incidents.”

At the time of the death of Camilla Taitón, she was the owner of the property, and could have alienated the same without any authority from John Liptrot, the supposed trustee, even admitting the title had been conveyed to him for the purposes mentioned in the deed. It was her separate property, and was enjoyed by her, “ with all its incidents one of which is, that at her death, it passes to and vests in her legal representative, who is the plaintiff-in error. — Bradly vs. Hughes, 11 Eng. Ch. Rep. 368; Tullet vs. Armstrong, 17 Eng. Ch. R. 17, 32. In Jones vs. Cole, 2 Bailey’s Rep. 330, the same principle involved in this case was discussed and settled, so far as it regards the execution of the trust. That was an action of trover for two slaves. The plaintiffs gave in evidence a deed, executed by their mother, Anna Jones, afterwards Cole, by which she conveyed the slaves in question to Samuel Hughes, in trust for her separate use during her life ; and after her death, for the use of the plaintiffs ; and by a subsequent clause, appointed him to act as trustee for the plaintiffs, as well as herself. Samuel Hughes accepted the trust, and afterwards, being about to remove from the State, in pursuance of a power vested in him by the deed, assigned his trust to John Jones. The donor died in December, 1824. The defendant moved for a nonsuit, on the ground that the action should have been brought in the name of the original, or substituted trustee. But the presiding judge held, that the trust became executed at the death of the donor, and the plaintiffs, who were the cestui que trusts, were entitled to maintain this action in their own names ; and his decision was sustained by the Court of Appeals, on the ground that, after the death of the donor, there was nothing to he done on the part of the trustee, to invest the plaintiffs with the title to the property. The object of tire trust had been answered, as in this ease. There was nothing to be done on the part of Liptrot, the supposed trustee, to pass the title to the legal representatives of Camilla Taitón; her title to the property was perfect and complete, without any conveyance from him. In the caso of Jones vs. Coley the title to the negroes was conveyed by Anna Jones to the trustee, for the separate use of herself during- life, and, after her death, for the use of the plaintiffs. The same position was assumed in that ease as in this, that the legal title to the property was in the trustee, and therefore the suit should have been brought in the name of the trustee ; but the court held, in that case, there was no conveyance necessary on the part of the trustee, to invest the cestui que trusts with the right of property, to maintain trover therefor.

Although the slaves were expressly conveyed to the trustee by deed., by the then owner, Anna Jones, in trust for the use of the plaintiffs, after her death, yet, the court held, the trustee had only a special property in the slaves, which terminated at the death of the donor, the object of the trust having been executed. So here, the object of the donor, or creator of the trust estate, in John Liptrot, (if yon please to call it such,) was fully answered, by haying the property protected against the marital rights of Henry Taitón, during the coverture, according to the true intent and meaning of the parties to the instrmment; and when the coverture was determined, by the death of the donor, the right of possession, as well as the right of property, vested ire her legal representative. The trustee had no longer any interest ire the property, after the dissolution of the coverture ; his interest, and Ms only interest, in the property was, to- protect it for the- sole and sop>arate use of Camilla Taitón, during her coverture ; and bad Taitón died first, tliero would have been no further use for his services as trustee, to protect the property as against him ; and her dying first, does not make any difference ; the trust was fully executed, so far as Ms interest as trustee was concerned in the property. It was contended, that, inasmuch as the wife died first, the title to the property vested in her husband, under the act of 26th December, 1827. — Prin. Dig. 251. To have given him a right to the possession of the property, under that act, ho should have taken out administration oil his wife’s estate. There must always be an administration, for the reason there may be debts to be paid. The question of conversion was discussed in the argument, by the counsel for the defendant in error, and we will express an opinion upon it, although it does not appear necessary, in the present stage of the ease ; but it may become important, in its further progress, and it is the object of tbis court to prevent litigation, as far as possible. A conversiomuay consist in a tortious taking of a chattel, or in a wrongful assumption of property in it, or in, making an illegal use of it; if there be a deprivation of property to the plaintiff, it will constitute a conversion, though there bo no acquisition of property by the defendant. — 2 Leigh’s Nisi Prius, 1477. A paity may bo guilty of a conversion, by dealing with, or claiming property in goods as his own, or even by asserting the right of another over them. — ib. 1480.

The action of trover being founded on a conjunct right of property and possession, any act of the defendant, which negatives, or is inconsistent with such right, amounts in law to a conversion. It is not necessary to a conversion, that there should be a manual taking of the thing in question by tbe defendant: it is not necessary that it should be shown, that he has applied it to his own use. Does ho exercise a dominion ova it, in exclusion, or in defiance of the plaintiff’s right ? If he does, that is in law a, conversion, he it for his own or another person’s use. — 6 Bacon’s Abr. 677; Bristol vs. Burt, 7 Johns, Rep. 258; Reid vs. Colcock, 1 Nott and McCord’s Rep. 600; Reynolds vs. Shaler, 5 Cowen’s Rep. 323. But it is said, where a party comes lawfully into the possession of property, there must be a demand and refusal proved. This is undoubtedly trpe whore the defendant finds the property, or where he gets possession of it, by the consent of the plaintiff; the possession must be lawful as against the plaintiff. — 2 Phillips’ Ev. 225. Demand and refusal is only evidence of a conversion. — ib. 226. But where the defendant gets possession of property, as administrator, in right of Ms intestate, or where he gets possession of it as a purchaser, at sheriff’s sale, under an execution against some third person, and uses and exorcises dominion over the property as his own, it is a conversion, as against the rights of the plaintiff, who is a stranger to the title, under which the defendant claims. Although the defendant may obtain the possession of property under legal process, yet, if he assert a title or claim hostile to the plaintiff’s right or title, under such legal process, it is a conversion as against the plaintiff. — Hulchins vs. Bobo, 1 Bailey’s Rep. 546; Tompkins vs. Haile, 3 Wend. Rep. 406; Bates vs. Conkling, 10 Wend. 389; Summerset vs. Jarvis, 7 Eng. Com. Law Rep. 322. What is meant by defendant coming lawfully into possession of the property is, where ho finds it, and retains it for the true owner : or whore he obtains the possession of the property, by tbe permission or consent of tbe plaintiff, as where the relation of bailor and bailee exists. In this latter class of eases, a demand and refusal would be necessary, unless it could be shown the defendant had appropriated the article so found to his own use, or had disposed of the property bailed, contrary to the terms and stipulations of the contract of bailment. Our judgment, therefore, is, that the court below erred in nonsuiting the plaintiff, on the statement of facts presented by the record, for the reasons already given. Let the judgment of the court below be reversed, and the case reinstated.